Concept

Common Law Versus Model Code

Robbery

Common Law Versus Model Code

The two formulations of robbery answer the same question with different tools. At common law, robbery is a taking of another's personal property from the other person's body or immediate presence, accomplished by force or intimidation and carried out with the intent to permanently deprive the owner of it.¹ The Model Penal Code starts from theft instead and asks what violence accompanies it: a person is guilty of robbery if, "in the course of committing a theft," the actor does one of the three things that the preceding sections of this chapter examined.² Stated side by side, the common law defines the offense by the situation in which the property changes hands, and the Code defines it by the violence that surrounds a theft. Because each approach asks for different facts, the comparison below goes point by point.

The overlap comes first, because both formulations rest on theft. In People v. Gomez, the California Supreme Court described the common-law offense as larceny plus two aggravating circumstances: the property is taken from the person or presence of another, and the taking is accomplished by force or by putting the victim in fear of injury.³ The Code writes the theft requirement into its opening words, and in State v. Mejia the New Jersey Supreme Court observed that the Code links robbery to theft and separates the two offenses only by requiring the use or threat of force, which implies that robbery carries the same criminal intent as theft.⁴ Most state statutes follow that approach and treat robbery as a specific-intent crime, meaning one that requires the actor to act with a particular purpose beyond the physical act, here the purpose that the underlying theft demands.⁵ A court applying either formulation therefore begins by confirming a theft, with the intent that theft requires, before it turns to the aggravators.

Exam Analysis Steps

Beyond that shared foundation, the formulations diverge in three places, and each divergence changes the result on some set of facts:

The common law lists, as its own element, a taking from the victim's body or from an area within the victim's immediate presence, while the Code's text lists no presence element.⁶
The common law accepts force or intimidation as the means of coercion, while the Code accepts any of three routes: inflicting serious bodily injury, threatening or purposely putting the victim in fear of immediate serious bodily injury, or committing or threatening immediately to commit a felony of the first or second degree.⁷
The common law ties the force or threat to obtaining the property or to keeping it immediately after obtaining it, while the Code asks only whether the violence occurred in the course of the theft, a phrase that reaches an attempt and flight after an attempted or completed theft.⁸

The first contrast needs care in how it is stated. The Code's silence on presence does not mean the Code defines presence in some different way; it means only that the text does not list a presence element, so a Code problem is analyzed through the lead-in and the three routes. The common law, in turn, cannot reach conduct that falls short of a taking, because its definition begins with one.

The reason for the difference lies in what each approach is built to capture. A definition keyed to presence and timing confines robbery to the confrontation at the moment the property is taken, so the heavy label attaches to a face-to-face encounter over the property itself. That design has a cost. Suppose a thief's attempt fails and the thief then injures a pursuer while running away. At common law the answer would depend on whether a taking had occurred, a technical question about how far the theft progressed, even though the danger to the pursuer is the same either way. The Code removes that dependence by reaching attempts and flight, so dangerous violence is not excused by the stage the theft happened to reach.

A codified statute may track neither formulation exactly, so the text in front of the reader controls. The New Jersey statute examined in Mejia has the Code's three-part structure and defines "in the course of committing a theft" to include attempts and immediate flight after an attempted or completed theft, which the court described as broadening the common-law definition; it also treats force, even force less than an assault requires, as enough to satisfy its force requirement.⁹ A statute that resembles the Code on its face can therefore still differ from it on how much force suffices, and the fastest way to go wrong is to import the Code's wording into a statute that says something else.

Hypothetical Illustration

A defendant grabs at a bag on a café table, fails to get hold of it, and runs. A pursuer catches up, and the defendant shoves the pursuer down a flight of stairs, causing serious injury. The violence occurred in flight after an attempted theft, so the Code's lead-in is met, and the infliction of serious bodily injury supplies a route to robbery. The common-law definition begins with a taking, and nothing was taken, so its elements are not met on these facts, although other offenses such as battery or attempt may still apply.

Change the conduct. A pickpocket lifts a wallet from the coat of a commuter who notices nothing. There is a theft, and the wallet came from the victim's person, but no force and no threat accompanied it. The common-law requirement of force or intimidation is not met, and none of the Code's routes is met, so the conduct is theft and not robbery under either formulation.

The two scenes show which fact does the work. In the first, the stage of the theft separates the formulations, because the Code reaches an attempt followed by violent flight and the common law waits for a taking. In the second, the missing violence defeats both, because each formulation adds force or a threat to a theft and neither accepts a theft alone. A gunpoint demand for the contents of a cash drawer, by contrast, satisfies both: the property is taken from the clerk's presence by an immediate threat of serious injury, so the choice of formulation does not matter. Students lose points when they treat the two formulations as interchangeable, for instance by demanding a taking from the person on a Code problem or by applying an escape-and-flight reach to a common-law problem. The first step is to identify which formulation governs, whether the question says it is applying the common law, the Model Penal Code, or a particular state statute, and then to run only that formulation's elements.

Common Law Versus Model Code

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